United Nations Participation In The Sudan And Eritrea Case

United Nations Participation in the Sudan and Eritrea case

In the case to be analyzed, it establishes a war conflict for territorial reasons between two states -sudan and eritrea- countries of the African continent. In this conflict they have caused eminent damage to their citizens, evidence. It is important to note that these countries are not part of the African Charter of Human Rights, nor have they ratified the Rome Statute.

Prior to the analysis of the reference case we must carry out a brief preamble on the general aspects of the Rome Statute to understand its competence and jurisdiction. On July 17, 1998, in the city of Rome, 160 countries established the International Criminal Court to judge those responsible for the most serious crimes that affect us worldwide, within which we can mention: genocide, war crimes and crimes againstHumanity -we can verify that they have been committed in the sustained conflict between Sudan and Eritrea. It was understood as important as the United Nations Charter.

That said, we can clearly answer the following question: “Can a State be convicted of crimes without ratifying Rome Statute?”For a State to accept the jurisdiction of the International Criminal Court, it must first show its acceptance in being part of the Rome Statute, through its ratification or demonstration of acceptance. This is why, in order for the Court to exercise its competence, the state of the territory in which the crime or the nationality of the accused was committed must be parts of the statute.

However, since everything is not absolute in law, there are cases in which the Court can have competence without states being parts of the statute, this occurs when: 

•  The State accepts the jurisdiction of the International Criminal Court in particular cases; 
• on cases referred to by the United Nations Security Council.

It is important to note that the Security Council and the International Criminal Court carry out a joint work by attending each other. The Statute attributes to the Security Council the maintenance of peace and international security in accordance with the United Nations Charter. In a comparative manner with the internal legal system, we could say that the Security Council, in some cases, behaves as a kind of “prosecutor” since it can send a “situation” to the Court when you understand that one or more have been committedof the crimes contained in the statute, thus being able to initiate an investigation.

In relation to the remission of a “situation” from the Security Council, the United Nations has clarified that: “since the remission of a situation to the Security Council is based on the competition granted by chapter VII, which isMandatory and legally executable in all states, the exercise of the jurisdiction of the Court becomes a part of the execution measures. Its jurisdiction becomes mandatory even when neither the State in whose territory has been committed the crime nor the State whose nationality has the accused are parts of the statute. In these cases, the International Criminal Court helps the Security Council to maintain peace through investigation and prosecution. This jurisdiction, which results from a remission of the Security Council, highlights the function of the Court in the execution of the norms of international criminal law. At the same time, the jurisdiction of the Court still extends to the states not part, in those cases.

The Security Council may request that the Court differ an investigation or prosecution for a renewable period of twelve months when the powers of execution or maintenance of the peace conferred by Chapter VII is exercising. This extension has the purpose of ensuring that the efforts of the Security Council in favor of peace are not affected by the judicial investigation or action of the Court."

It is necessary to determine that in the hypothetical it was not established if these states in conflict are part of the United Nations, data that according to current reality can affirm that they are part of this organization. This is why, according to the widely carried out explanation, we can affirm that in the case of the analysis, the Security Council in search of the maintenance of peace and international security, can send a “situation” to the court to be so thatOpen the investigation of the matter. Reiterating the previous explanation of why it would apply its knowledge before the International Criminal Court when the United Nations establishes that “… its jurisdiction becomes mandatory even when neither the State in whose territory has been committed the crime nor the State whose nationality has the accused are partiesof the statute. In these cases, the International Criminal Court helps the Security Council to maintain peace through investigation and prosecution."

The author Yoveslav Radoslavov Yordanov, explains that: “The Council sent its first situation to the Prosecutor’s Office of the Court in 2005, repeating the same practice six years later on the occasion of the conflict that took place in Libya. Thus, on March 31, 2005, for the first time in its history, the Security Council sent to the Prosecutor’s Office of the Court the situation in Darfur, Sudan, through Resolution 1593 (2005), without any of the permanent members to putveto, for the important concessions that had to be done. This resolution was approved with the favorable vote of eleven of the members and the abstention of four of them (China, the United States, Algeria and Brazil). Later, in February 2011, resolution 1970 (2011) was approved, by which the Security Council sent the situation prevailing in Libya to the Court Prosecutor’s Office since February 15, 2011, noting that it acts under theChapter VII of the Charter and expressly mentioning the measures of article 41, as opposed to the first case where this reference was omitted. It seems relevant to emphasize that neither of the two states is part of the statute, so that power should not be instrumentalized to satisfy the interests of some permanent members, precisely because of the implications involved in the states not parties not parties."

On the other hand, can those displaced by wars be considered a crime against humanity? The so -called "crimes against humanity" are commonly identified as crimes against humanity considered serious and must meet two "generalized or systematic requirements against a civilian population" and "with knowledge of said attack".

Reviewing history and doctrine, it is highlighted that “after the Second World Warforced. In the Krupp case, for example, the US Military Court.UU. found that:

“The deportation of civilians from one country to another in times of war becomes a crime if the transfer is carried out without a legal title, as is the case of people who are deported from a country occupied by an invader while theOccupied enemy still has an army on the ground and still opposes resistance. The second condition by which deportation becomes a crime when the objective of displacement is illegal, such as deportations with the purpose of forcing those deported to manufacture weapons used against their homeland or to be used in the labor economy of the labor economy of theoccupant country. The third condition under which deportation becomes illegal occurs when universally recognized norms of dignity and humanity are not taken into account."

On the other hand, there are forced transfers of civilians who are considered LICITO, those that are carried out during military operations in order to safeguard the well -being and health of civilians or those that are allowed at the time by the rules related to the requisitionsof workers. In this case, we can mention the IV Geneva Agreement (it protects, during the war, the injured and the patients of the armed forces in Campana) that in its article 51 establishes that to make such forced transfers must be safeguardand satisfactory conditions of health, hygiene and safety.

In the experience of the International Courts AD HOC, one of the most common examples of the involuntary participation of civilians in conflicts is large -scale and involuntary displacement. On the one hand, this phenomenon can be considered to some extent inevitable in any conflict, due to the humanitarian need to evacuate civilians in conflict areas and their natural tendency to seek protection outside the battlefield. However, at least for cases prior to TPIY, it is fair to say that judges’ failures also reflect the nature of many contemporary conflicts that are often characterized by a specific plan of civil and military leaders to displace significant portions of the populationcivil for ethnic, religious, national or political reasons. Depending on the concrete circumstances of the case, and apart from the possibility that it is equivalent to a war crime, the displacement of civilians can also lead to individual criminal responsibility for one or more crimes against humanity.

As we have mentioned above, in this case the United Nations Security Council is the agency responsible for the search for the maintenance of international peace and security. This is why, in his collaborative work in favor of the International Criminal Court, he must notify the Court for the purpose of agile and effectively.

Likewise, the author Yoveslavovov Yordanov has confirmed: “As the main organ of the United Nations, the primary responsibility of maintaining international peace and security is attributed to the Security Council of maintaining international peace and security, in accordance with article 24 of the Charter, in order to ensureA rapid and eicaz action. Consequently, he is recognized by the power to send “a situation” in which one or more of the international crimes of the court’s jurisdiction seems to have committed, the power that finds its reason for being in current article 13, section b),of the Rome Statute. In this sense, once the Security Council has described a situation as a threatening or breaking international peace and security, the political measures that it can adopt to maintain or restore peace adopt a very broad spectrum, being able to affect then directly onThe ability to act from the Court, passing from the political level to the jurisdictional plane."

This procedure can be summarized in three main phases: 

• The preliminary exam; 
•  The research and prosecution phase; 
• The oral trial that occurs before the first instance room and concludes with the issuance of a sentence. Although between the international courts there is no way of appeal since these are totally independent, in the case of the International Criminal Court you can file challenging resources that the same court knew it.

The peace missions organized by the United Nations are born in the 1956 year to control disputes between the states, avoiding the armed confrontation between them and promoting the use of diplomatic pacifical mercuums of conflict resolution. In each of the peace maintenance operations, military, police and civil personnel work, in order to provide security and support for the consolidation of a political peace.

In accordance with the United Nations provisions on the peace missions, in this case, in my opinion there could be a peace mission since there is an armed confrontation between the states – they know and Eritrea – that must be resolved.

The legal solution of this case I understand that it clearly follows from this analysis based on the complaint or remission of "situation" to the International Criminal Court since it could perfectly seize this case and resolve it in view of the fact that the United Nations has tried to resolveThe conflict and has not achieved it. However, as human beings we should avocar for the last attempt at the use of diplomatic pacifical mercuums of conflict resolution between states that exist as they are: negotiation, good offices, mediation, research and conciliation.